When BNSF track inspector Brandon Fresquez refused to falsify reports of track defect repairs, he was terminated for insubordination. In another example of the transformative power of the FRSA, a federal jury and judge have ordered BNSF Railway to pay Fresquez $1.74 million, including $800,000 in emotional distress, $250,000 in punitive damages, and $696,173 in
Charlie Goetsch
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Protecting Subway Workers From Retaliation
By Charlie Goetsch on
Posted in Subway Whistleblower
A recent decision from the U.S. Department of Labor’s Administrative Review Board holds, in a case of first impression, that the National Transit Systems Security Act (NTSSA), 6 U.S.C. Section 1142, “provides subway employees protection against retaliation for raising concerns relating to workplace safety, as well as public safety.”
In Janathan Harte v. Metropolitan Transportation …
Circuit Court Rejects “Honestly Held Belief” Defense
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The 8th Circuit Court of Appeals confirms that a railroad can violate the FRSA even if it honestly believes an employee violated a rule. In Blackorby II, the employee was disciplined for violating BNSF’s rule requiring the “immediate” reporting of work-related injuries. But reporting a work-related injury is protected activity under FRSA Section 20109, and…
Fine Tuning The Expungement Remedy
By Charlie Goetsch on
Posted in Federal Rail Safety Act
When the imposition of discipline violates the Federal Rail Safety Act, it is routine for OSHA or a judge to order its expungement from the railroad’s records. But what if that runs afoul of other laws requiring the preservation of corporate records? In Brough v. BNSF Railway, the Administrative Review Board explains how…
The Burden of Proving Failure to Mitigate Is On the Railroad
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Every injured or terminated employee has a legal duty to make reasonable efforts to mitigate or minimize his or her lost wage damages. But “failure to mitigate” is an affirmative defense, and the burden of proving any such failure falls entirely on the railroad. In Brough v. BNSY Railway, the Administrative Review Board held:
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Disciplinary Waivers Do Not Negate FRSA Rights
By Charlie Goetsch on
Posted in Federal Rail Safety Act
The anti-retaliation provisions of Federal Rail Safety Act Section 20109 are indeed powerful, so powerful they cannot be waived by any disciplinary waiver or “plea bargain.” FRSA subsection (h) reads: “The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” And In Montes v. …
Is Filing a FELA Complaint Protected Activity?
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Answer: Yes, it can be, according to the United States Department of Labor. Joshua Cleveland v. Long Island Rail Road (SDNY) is a Federal Rail Safety Act case claiming the Railroad retaliated against an employee after he filed a FELA lawsuit. The United States Attorney filed a Statement of Interest on behalf of the DOL…
ARB Limits Temporal Scope of (c)(1) Protection
By Charlie Goetsch on
Posted in Federal Rail Safety Act
Federal Rail Safety Act Subsection (c)(1) prohibits railroads from denying, delaying, or interfering with an employee’s right to prompt medical treatment for a workplace injury. In Santiago v. Metro North Railroad, the ARB held the scope of (c)(1)’s prohibition was not limited to the immediate aftermath of a workplace injury. Now, in Wever v. …
Spotlight On MBTA Safety Culture
By Charlie Goetsch on
Posted in Federal Rail Safety Act
How bad is the safety culture at the MBTA? So bad the Chief Safety Officer was terminated for demanding correction of critical safety issues. And had to file a whistleblower retaliation complaint to set things right.
The National Transit Systems Security Act (NTSSA) is a federal whistleblower protection statute that prohibits transit authorities such as…
When Equitable Tolling Applies to FRSA Deadlines
By Charlie Goetsch on
Posted in Federal Rail Safety Act
A Circuit Court has clarified when the doctrine of equitable tolling applies to FRSA Section 20109 time limitations.
In Sparre v. United States Dep’t of Labor, the 7th Circuit confirms the FRSA’s various time limitations for filing or appealing are not jurisdictional and therefore are subject to equitable tolling. However, the Court warns such…